Can an employee be dismissed for refusing to take the coronavirus vaccine?

30th December 2020 There has been much discussion about the vaccine for the coronavirus. In light of the disruption and distress caused by the coronavirus most people have welcomed the recent development of the vaccine for the coronavirus. It is being given to healthcare workers and vulnerable groups first, but with the intention to extend its availability to the population as a whole.

While many people welcome the development and availability of the vaccine, some people do have concerns about it- particularly concerns linked to the fact that it has been developed and is being used somewhat quicker than most vaccines have been in the past. There is also talk of the vaccine potentially being required by insurers, employers, or parts of the hospitality and leisure sector for their customers, users and staff.

In this article we will look at the question of whether an employer can dismiss and employee for refusing to take the coronavirus vaccine, and what type of claims such an employee could then bring against their former employer.

Obviously, and employer cannot actually physically make an employee take the vaccine, but the likely scenario that will cause problems is when an employer puts forward an ultimatum- “take the vaccine or lose the job!” In a time with rising unemployment, the economic pressure on any individual facing that ultimatum is significant.

There are essentially two distinct types of claims that could potentially arise from a dismissal arising from the employee refusing to have the vaccination, unfair dismissal, and unlawful discrimination.

Unfair dismissal

In most instances an individual has to have been employed by their employer for at least two years before they are protected against unfair dismissal. For those employees with shorter length of service they are entitled to their contractual notice to terminate their employment.

It is up to the employer generally to show that they have a fair reason for dismissal, and have followed a fair process in carrying out the dismissal.

Employers cannot compel their employees to be vaccinated. To do so, would be in breach of the Human Rights Act 1998, and the European Convention on Human Rights, which establish the right to respect for private life and family life. Employees may also have concerns about side -effects of the vaccination, or fear of adverse reaction to it.

What are the most likely justifications or potentially fair reasons why an employer may want its staff to be vaccinated?

a) Health and safety of the staff and contacts (ie suppliers and/or customers)

Employers owe a statutory and common law duty to take reasonable steps to secure the health and safety of their staff. In view of the known health risks posed by the coronavirus, employers are likely to argue that a reason for wanting staff to be vaccinated is a health and safety reason. It is possible that some employers may argue that requiring employees to be vaccinated is a part of their health and safety measures to limit the risks posed by the coronavirus. It is likely that this would be one of a number of steps, including social distancing. However, if an employer is going to consider the risks posed by staff not having the vaccine, it seems reasonable that they should also include consideration and assessment of risks that may be posed in actually taking the vaccine (for example to such staff that may have allergic reaction to it, or may be pregnant or have any other contraindicating medical condition).   

All businesses are different, so it is questionable as to how far this justification can be made out for a variety of businesses. The argument will be stronger in the care sector, such as in hospitals, care homes, GP surgeries, and other medical practises. It is perhaps a rather different matter in an office environment, or in a situation where the employee can continue to do their work from home (therefore not having to mix with colleagues or clients face-to-face).

b) As a requirement imposed by a supplier or customer of the employer

Some potential issues may arise where the individual is normally required to carry out their work at a location where the owner of that location requires that anyone working there has had the vaccination, ie rather than it be strictly required at the employer’s own site. In this scenario it is likely that any resulting dismissal is likely to be unfair unless the employer has first made proper attempts to allocate work to that individual at locations where no such demand or condition has been set, or alternatively find other tasks for that individual to perform (at least temporarily).
 
What if the employee refuses to have the vaccination, despite their employer instructing them to do so?

In the first instance the employer should discuss the concerns and reasons that the individual may have for refusing to have the vaccination. It is always best for any employer in this situation to discuss the issues with the employee before making any decision on how to respond to them. It may be that such discussion may flush out genuine medical reasons, such as any specific concerns relating to that individual taking any other medication that causes them worries over combined effects with the vaccine, or that the individual is pregnant, and had not previously wanted that fact to be known to their employer (nb the current advice- as at 22nd December 2020- from the Government recommends that anyone that is pregnant should not have the vaccination).

i) Pregnancy

The Government guidance indicates (as at 22nd December 2020) that the vaccination should not be taken by a person that is pregnant, breastfeeding or is planning to become pregnant in the next 3 months. It is stated that the vaccine has not been assessed in pregnancy. Therefore, the guidance indicates that you should wait until after the birth of the child, or after finishing breastfeeding.

ii) Allergic reaction

The Government guidance indicates that you should not have the vaccine if you “have ever had a serious allergic reaction to medicines, vaccines or food.”  

iii) Potential problems with other medication

The guidance indicates that you should speak to your medical practitioner if you have any concerns about the vaccine in relation to other medication you may already be taking.

The Government guidance does make it clear that there will be a possibility of getting the coronavirus even if you have had the vaccination, and recommend the continuation of social distancing.

Fair Procedure

It is essential that employers note that even if their instruction is a reasonable one, the procedure that they should follow in dealing with it should be fair.

Firstly, the employer should explain are clearly as possible the reasons for them wanting their employees to receive the vaccination, and give the employee the opportunity to raise their concerns and discuss them fully.

If, after a period of discussion, the individual refuses to have the vaccination the employer ought to consider if there is any alternative role that they can place the employee into before deciding to dismiss them for refusing the request.

Unlawful discrimination

There is no specific legal protection given under the discrimination law in relation to a wish not to have a vaccination. In order to be able to bring a claim under the discrimination law the individual will have to show that they have a “protected characteristic” listed in the Equality Act 2010 - such as gender, age, race, disability, sexual orientation, religious belief.

Disability discrimination

It might be the case that for some disabled employees that they are unable or unsuitable for having the vaccination for a reason related to their disability. This will obviously need to be considered on an individual basis. It is always important for employers to appreciate that the disadvantage posed by the person’s disability may not be immediately obvious, so this could require some investigation into the individual’s circumstances.   

Religious discrimination

It may be the case that for some employees there could be a religious reason for objecting to having the vaccination. Again, any employer faced with this information should give careful consideration of the issue.

Other related issues for employers to consider

Evidence of vaccination

Requiring proof of vaccination presents data protection issues. As this is personal medical information, it is sensitive personal information for data protection purposes. Therefore, before making such a requirement, an employer will need to consider why it needs proof of vaccination, and how that information will be stored or used. This data protection issue also arises in the situation where an external supplier or customer might require the individual to provide such “proof” that the individual has received the vaccination as a condition of working with them or at their site. Obviously, any employer will need the express consent of their employee if they are asked to disclose such information in advance of that employee going to work at the customer or supplier’s own site.

Dealing with accurate information or expectations in relation to the vaccination

Firstly, the vaccine is given in two parts, 21 days apart, and the Government guidance on the Pfizer/BioNTech vaccination makes it clear that the protection against COVID-19 may not be effective until at least 7 days after the second dose. Immunity provided by the vaccination is not instant (and not total). The need to continue taking other precautions remains.

The Government guidance makes clear that even if an individual has received the vaccination, they should still adhere to the guidance on social distancing, so employers need to take this into account when considering the whole issue.  
   
If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.